STATEMENT OF UNITED STATES ATTORNEY CARMEN M. ORTIZ
REGARDING THE DEATH OF AARON SWARTZ

As a parent and a sister, I can only imagine the pain felt by the family and friends of Aaron Swartz, and I want to extend my heartfelt sympathy to everyone who knew and loved this young man. I know that there is little I can say to abate the anger felt by those who believe that this office’s prosecution of Mr. Swartz was unwarranted and somehow led to the tragic result of him taking his own life.

I must, however, make clear that this office’s conduct was appropriate in bringing and handling this case. The career prosecutors handling this matter took on the difficult task of enforcing a law they had taken an oath to uphold, and did so reasonably. The prosecutors recognized that there was no evidence against Mr. Swartz indicating that he committed his acts for personal financial gain, and they recognized that his conduct – while a violation of the law – did not warrant the severe punishments authorized by Congress and called for by the Sentencing Guidelines in appropriate cases. That is why in the discussions with his counsel about a resolution of the case this office sought an appropriate sentence that matched the alleged conduct – a sentence that we would recommend to the judge of six months in a low security setting. While at the same time, his defense counsel would have been free to recommend a sentence of probation. Ultimately, any sentence imposed would have been up to the judge. At no time did this office ever seek – or ever tell Mr. Swartz’s attorneys that it intended to seek – maximum penalties under the law.

As federal prosecutors, our mission includes protecting the use of computers and the Internet by enforcing the law as fairly and responsibly as possible. We strive to do our best to fulfill this mission every day.

The statement is complete hogwash, frankly. If what she claims is true -- that they recognized "his conduct – while a violation of the law – did not warrant the severe punishments authorized by Congress and called for by the Sentencing Guidelines in appropriate cases" then they would not have piled on more charges in the indictment in September. The original indictment, which had four charges against Swartz, had a maximum potential jail time of 35 years. And, Ortiz's own press release trumpeted that fact:

AARON SWARTZ, 24, was charged in an indictment with wire fraud, computer fraud, unlawfully obtaining information from a protected computer, and recklessly damaging a protected computer. If convicted on these charges, SWARTZ faces up to 35 years in prison, to be followed by three years of supervised release, restitution, forfeiture and a fine of up to $1 million.

And, then in September, nine more charges were added, which brought the total possible time up to 50 years.

If Ortiz truly believed that his conduct did not warrant such "severe punishment" then she would not have trumpeted the 35 years in the first place, nor would she have piled on more charges. That would serve absolutely no purpose whatsoever if her claim here was true.

Furthermore, as Swartz's lawyers have made clear, Ortiz and her assistant, Stephen Heymann were pretty explicit to Swartz's lawyers that if he did not take their plea bargain offer, the next offer would be for more jail time, and if he still chose not to accept the offer, they'd seek at least seven years for Swartz in court. Tossing out that six month claim as if it were proof of some sort of fair dealing on Ortiz's part is flat out insulting to the intelligence of any thinking person, and downright offensive to the memory of Aaron.

How would Ortiz like it if her own child was accused on trumped up charges and threatened with 35 or more years in prison in press releases -- and then told to "settle" for just six months. I doubt she would find that to be "fair."

As Tim Lee explains, the whole "plea bargain" system is a farce, allowing prosecutors to effectively bring forth these massive "possible" punishments to effectively force someone into pleading guilty without ever going to trial. Going to trial is dangerous, because the prosecutors effectively make sure that anyone who does exercise a right to a trial is likely to get much more time in jail:

If Ortiz thought Swartz only deserved to spend 6 months in jail, why did she charge him with crimes carrying a maximum penalty of 50 years? It’s a common way of gaining leverage during plea bargaining. Had Swartz chosen to plead not guilty, the offer of six months in jail would have evaporated. Upon conviction, prosecutors likely would have sought the maximum penalty available under the law. And while the judge would have been unlikely to sentence him to the full 50 years, it’s not hard to imagine him being sentenced to 10 years.

In this hypothetical scenario, those 10 years in prison would, practically speaking, have consisted of six months for his original crime (the sentence Ortiz actually thought he deserved) plus a nine-and-a-half-year prison term for exercising his constitutional right to a trial.

As he further notes, no judge would impose a harsher sentence on someone for exercising other rights -- such as taking the Fifth, hiring a lawyer or confronting an accuser. Yet, if you demand your right to a trial, the US Attorneys have effectively rigged the system so that defendants are punished. And that gives them immense power.

Thanks in part to this kind of coercion, more than 90 percent of defendants waive their right to a jury trial. For the majority of defendants, then, the plea bargaining process is the justice system. As a result, prosecutors wield an immense amount of power with very little accountability.

It’s not surprising that Ortiz doesn’t see anything wrong with this system. Powerful people rarely see their own power as problematic. But the rest of us should be outraged—not just by Ortiz’s conduct, but by a system that treats thousands of defendants less famous than Swartz the same way.

This is not a new problem. A year and a half ago, the NY Times had a feature article highlighting this very problem, which it calls "the trial penalty."

Also, while Ortiz claims that the final sentence "would have been up to the judge" and even suggests that since defense counsel could have recommended just probation, the judge might have been more lenient, she must know that it is quite rare for judges to issue sentences more lenient than what prosecutors put forth from a plea bargain. In fact, judges will often issue harsher sentences than what the prosecutors "agreed" to with the defendant, since the judge is not bound to the terms of the agreement specifically.

Many countries do not allow plea bargaining, because they recognize how it can be used for coercion. Meanwhile, studies have shown that plea bargains quite frequently can lead to innocent people accepting a deal recognizing that it's much better to do that than risk a trial where the punishment would be much, much higher. Yes, more innocent people do stand up against such offers than guilty ones (according to the same study), but a large number of innocent people feel compelled to just take the deal.

Basically, this whole system is wide open to abuse, and it's clear from Ortiz's actions that she, too, was abusing the system in this manner: pushing for super high possible jail time as a huge and scary weapon to try to pressure Swartz into accepting a lower rate -- but also making him a convicted felon. Using the plea offer as some sort of "proof" of reasonableness is really quite incredible and despicable. It's like pointing a gun at someone, telling them that you're planning to shoot them... and then saying that if they agree to confess to something they don't believe, you'll just pinch them instead. And then, when they complain, you say "well, clearly, I just thought the pinch was appropriate." That's clearly a bullshit explanation. Ortiz was better off with "no comment" than trying to pass this off as a reasonable claim.

Reader Comments

The sadness of Aaron's loss has just gone to a whole new level. And here we thought her husbands tweets were both outrageous and badly timed.

That Ortiz has now confirmed, on the record, that she has no regard to even acknowledge the ramifications, and in fact stands by her choices is beyond deplorable.

I've been praying for a long time that we find a way, in this country, to fix what is a completely broken system, given how many over-the-line problems exist. Now, I pray that Aaron's death will help propel us as a nation to get to the fixing sooner rather than later.

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Instead of praying, you should get active and write letters to your appropriate government representative. Praying will only console yourself, which is fine, but if you want to help Aaron and his family and the entire situation, you gotta get out there and do something.

Just a reminder

I fine it really incredible that she can say this.

I followed a case where she had a person locked up for translating what Al Qaeda said on YouTube videos.

For that, Tarek Mehanna was given 17 years. She has a career in being a tough litigator and locking people away for doing nothing more than what is supposed to be protected speech under the Constitution.

One person was locked away for speaking about terrorists.

The other was led to suicide for enriching the public domain.

She should be stripped of her right to prosecute our plea deal, the same as any other prosecutor. The system is rigged against anyone ever having a fair trial and that is beyond a travesty to our democracy.

Re: Just a reminder

I know what world Carmen Ortiz lives in and its a very dirty little world that is pulling off the largest dishonest service fraud this nation has ever seen. 1 Court House Way is an ongoing crime scene and Ortiz chooses to not prosecute tax paid public servants who freely break criminal federal law and, also, allows them to flaunt their no need to fear consequence. The folly of our youth where no harm comes to any person is not a crime that deserves years in prison; the only threat this young man posed was his God given brilliant mind that could have altered, for the better, a corrupt government. However, the theft of life, liberty and property through malicious prosecutions and civil pretense litigation where the CLERKS and some of the judges in these courts collude with attorneys, including prosecutors, to deprive rights where the means to an end is racketeering to promote profit for the corrupt over truth and justice does warrant years in prison. The entire justice system has been delegitimized by these alleged criminals and the tax payer is forced to support these corrupt fools where they have turned the houses of justice into nothing more than their own private playground! Where are the mail fraud, wire fraud and violations of the U.S. Computer Fraud and Abuse Act charges against the tax paid public servants working in these federal courts where they habitually render fraudulent judgments and manipulate dockets with computers paid for by the tax payer to obstruct justice and then send their bogus documents across state lines via the US Mail? Where are the RICO charges? Not only does the US Attorney hold responsibility for Aaron’s death but you can bet she was pressured by the Administrative Offices of the US Courts to go after Aaron because he messed with their precious corrupt PACER System. Aaron was part of the movement that wanted access to court documents free to everyone; access to court documents means more than an opinion rendered by the court (sometimes rendered by the court). NOW THERE IS THE PROBLEM – how soon would the world be aware of the number of fraudulent documents routinely entered into PACER by corrupt court staff, and yes, corrupt judges with world-wide free access to ALL federal court documents? How soon would it be before the world became aware that the US Courts are not about truth and justice but simply a huge racketeering enterprise set up to pad the pockets of select “elite” attorneys? Publishing for view the corrupt decisions that come from these courts on justia.com without access to the documents filed by the parties is a huge scam promoted and protected by the US Courts. The fact that the tax payer has to support these alleged criminals while they pull off the largest dishonest service fraud scheme ever seen in the USA is more than clearly a good reason to torture this young man until he killed himself because they knew damn well no jury of his peers would ever convict him. All of you on 1 Court House Way and all of you working and providing dishonest service in the US Courts throughout this country are sick psychopaths; you all belong in prison! I say all because if not directly involved these tax paid public servants aid and abet; cover-up and protection of court staff who routinely obstruct justice and deprive rights to rob life, liberty and property is routine by court staff not directly participating, routine for the US Marshal and routine for the Clerks of the Courts. These corrupt tax paid scum are in fact domestic terrorist who have delegitimized an entire Branch of OUR Government!! We have to keep faith that our District and Circuit Judges are not complicit but it is not looking good. The FBI first harassed Aaron over his downloading of multiple court documents and "compromise" to the system. PACER gives free access to judicial opinions, and citizens don’t have to pay if they look at less than $10 worth of filings during the billing quarter; BIG FREAKING DEAL—THEY LET YOU READ FOR FREE THEIR CORRUPT DECISIONS!!!! So let’s RECAP on the corrupt and make public access to ALL COURT RECORDS fly full force. I find it interesting that when I first had access to file in the electronic filing system the very first page I accessed had a warning not to use the RECAP system.(the system initiated where court documents would be free to the public is called RECAP – PACER BACKWARDS) So in actuality Carmen Ortiz not only needs to be removed from office but she belongs in front of a Grand Jury along with the entire 1 Court House Way crowd.

IMO 1 Court House Way Boston, Massachusetts needs to be converted into a federal prison and no one—ABSOLUTELY NO ONE—who works there should be allowed to leave! Read the full court file of the government’s prosecution of open government hacktivist Aaron Swartz

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Laura, I agree with you and have evidence of this kind of corruption and fraud occurring in probate courts as much as criminal courts. If they don't get you while you're young or middle aged they'll get you when you're old. Babyboomers better start paying attention to how probate courts work and how much unfettered power public administrators have without any oversight over them at all.

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What's that quote from Morris's The Thin Blue Line? Something along the lines of "A good prosecutor can put a guilty man away. It takes a great prosecutor to convict an innocent man." Ortiz would appear to be cut from that mold.

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A prosecution system that measures itself by their conviction rate is the heart of the mater. Justice as a possible byproduct of prosecution is a really bad system to begin with. Ortiz should be only concerned with finding the truth of the cases. Considering an acquittal or sometimes a dismissal because there is no actual crime or the accused is actually innocent should be considered a win too for the legal system.

There is also the fact that intimidation/coercion to admit guilt to outlandish charges from the prosecution feels exactly the same as being coerced by thugs on the street or bullied by peers. It certainly can push someone over the edge if he/she is already depressed. Some consideration should be given to that we are all human after all. Pretending to follow rules like mindless machines is no excuse. It certainly won't bring Aaron back or appease the family's sorrow.

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While not the only measure, I think the prosecution rate is still centrally important. Most government attorney offices (US Attys, DAs, County Attorney's, etc) serve as the chief law enforcement officer in their respective jurisdictions, making or directly influencing key decisions about whether or not investigations will lead to arrest and prosecution in the first place.

While I fully agree that plea bargaining significantly skews this measure, it would be a VERY NEGATIVE thing if a large segment, 20, 30, 40% of the people being jailed and prosecuted were ultimately not convicted.

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In 1977, the year Judge Kane was appointed to the bench, the ratio of guilty pleas to criminal trial verdicts in federal district courts was a little more than four to one; by last year, it was almost 32 to one.

hmm, 1/32 = 3.125%. This means 96.875% of cases were pleaded out last year.

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The point is that nothing should be prosecuted until there is enough evidence to convict. Yes, yes, I am aware that there is no way of knowing how much evidence is needed to convict. But by allowing plea bargaining, the chance of conviction is now nothing more than a bargaining chip to use so that the prosecutor doesn't even have to bother.

I was interested to see that some countries do not even HAVE plea bargaining. I think perhaps that is the correct route.

Did you know the US jails a larger percentage of its population than any other nation in the world that can be verified? Including China, Iran, Russia?

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What if only 10% of those accused were actually guilty? What if the other 90% are innocent?

Do you still want to see a 40+% conviction rate?

Why don't you base it on, oh i don't know, public opinion on crime rates? If public opinion says crime is low and not a problem, you're probably doing a pretty good job.

If public opinion is howling about crime then you're probably not doing so well.

Or maybe you could measure how many cases a prosecuter could definitively prove one way or the other. If the case comes up, and all evidence is there, all legally obtained, everything checks out 100% That's a damn good job. If it turns out that the evidence doesn't match up, and it points to different conclusions, thats also a good job.

The way the system is now, there is no incentive to hold anyone innocent...

"Aaron's Law" wouldn't have had any effect on Aaron's potential sentence. Woops. Funny how you don't report the truth. But then again, you and I both know that you don't care about truth. Note what Kerr said about the additional charges.

You're a total fake and coward, and you know it. And you're really disgusting in the way you're using this sad situation to your own advantage.

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I don't think anyone here is saying that Aaron's Law would have affected his actual sentence. However, inching closer to a reasonably spelled out definition in the CFAA is an overall positive. Not to mention, that the amended terms of the CFAA would impact slightly the portions around unauthorized access and how they were attempting to be applied here - yes, the actual impact is likely to have been taken care of in the courts, however, having the legislative branch fix its own damn laws is never a bad thing, versus going to the extreme of having the judicial branch do so.

Tl;dr: It's not a full fix, and we all know it. It's just the first cuts in the ice sculpture.

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I haven't read the full CFAA, but I have read the proposed fixes in "Aaron's Law", and I imagine they WOULD have changed the sentences he could have faced, since it would have explicitly stated that what he did(violating JSTOR's terms of service) would not violate the CFAA. Instead, his only potential crime would have been trespassing, for "breaking into" an unlocked room on an open campus, which I understand he wasn't charged with anyway.

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The vitriol is strong in you!

Though I guess that is what you get when trying to justify your own agenda, and using it towards your own advantage.

Though I doubt you have read the rest of Kerr's excellent though very much "walking on eggshells" post where he talks about the actual laws themselves and how they are totally outdated, rife with ambiguity, and allow double dipping of basically the same offence under different acts.

as for this whole response by the prosecution, its trying to pander sympathy, whereas I notice what she doesn't talk about is exactly what Kerr does talk about - prosecution discretion at ALL stages not just in the plea stage.

As I stated in another post that I thought was appropriate there in reply to ninja, I will repeat the quote again here since it is highly relevant.

Half the harm that is done in this world
Is due to people who want to feel important.
They don't mean to do harm -- but the harm does not interest them.
Or they do not see it, or they justify it
Because they are absorbed in the endless struggle
To think well of themselves.
- T. S. Elliot

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Rambling

I can't even tell who you're talking to, or what you're talking about, but as to the link....

Kerr admits the laws need to be redone even as he tries to defend the prosecution, but in the end states the laws are too punitive. He knows it's wrong, but as a lawyer tries to make it look less bad than it is, even though someone is now dead who was obviously being bullied by a prosecution he admits went too far.

It is rambling nonsense. He is making a mockery of his own career here.

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"Aaron's Law" wouldn't have had any effect on Aaron's potential sentence. Woops. Funny how you don't report the truth. But then again, you and I both know that you don't care about truth. Note what Kerr said about the additional charges.

Having spoken to many people about this, I think we agree that the proposed change would not have directly impacted the charges against Aaron, but that ignores the larger political reality. First off, this is just a draft, and the final proposal is likely to be different. Lofgren took language that had already been approved in the past by the Judiciary Committee and put it out there while she seeks co-sponsors. It is expected that a final bill will include more.

Second, it is widely believed among Congressional staffers that even just passing the draft law proposed would send a serious signal to prosecutors to avoid these kinds of prosecutions.

You may accuse me of being dishonest and a "fake" -- and that's your prerogative. However, perhaps -- just perhaps -- I actually know something of what I'm talking about.

You're a total fake and coward, and you know it. And you're really disgusting in the way you're using this sad situation to your own advantage.

I am not under federal indictment or facing any of these issues. How is it to my advantage? I am hopeful that we can fix a broken system (which, by the way, is the same thing that Kerr says).

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The fact is that your friend Lofgren was in such a rush to milk this scenario for her own private gain (just as you're doing with your incessant barrage of hate articles) that she proposed "Aaron's Law" without even doing the most basic research to find out if her proposal would have actually helped Aaron. Just imagine how high and mighty and hateful you would have been if someone pro-copyright suggested a fix to something that turned out to not actually be a fix. You'd write a scathing article, tearing them to pieces for being such an ignoramus. You'd remind us all about how smart you are and how dumb everyone else is. But when it's Lofgren, you have no criticism at all. Only praise. It's stuff like this that proves beyond a doubt that you're a zealot and a fake. You just jump on whatever sounds good. You don't care about reality. Not one bit. That's why you run away from substantive discussions about the details. You don't care about the details. You just want everyone to hate the world like you do, and you're not beneath milking this tragedy for every morsel you can squeeze out of it. You don't want reasonable discussion. You just want to bully everyone.

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The fact is that your friend Lofgren was in such a rush to milk this scenario for her own private gain (just as you're doing with your incessant barrage of hate articles) that she proposed "Aaron's Law" without even doing the most basic research to find out if her proposal would have actually helped Aaron.

This isn't just wrong, it's ignorant and offensive.

I know that you have Strawman Mike in your head, but just because you've built up an entirely false version of me, it doesn't mean you have the slightest idea what I actually do or think.

Nor do you know what Rep. Lofgren did or why.

Just imagine how high and mighty and hateful you would have been if someone pro-copyright suggested a fix to something that turned out to not actually be a fix. You'd write a scathing article, tearing them to pieces for being such an ignoramus. You'd remind us all about how smart you are and how dumb everyone else is.

Again, I am not who you think I am.

But when it's Lofgren, you have no criticism at all. Only praise. It's stuff like this that proves beyond a doubt that you're a zealot and a fake. You just jump on whatever sounds good. You don't care about reality. Not one bit. That's why you run away from substantive discussions about the details.

Again, it is impossible to discuss with you when you put false words in my mouth.

This is why we don't debate with you. You make up my side of the argument and do so by stating things that are completely false.

So weird.

You don't want reasonable discussion. You just want to bully everyone.

1. I keep comments open on my site because I want reasonable and open discussion.
2. I'm not the one making stuff up and putting words in other people's mouths, calling them names, using ad homs and other logical fallacies like a bully. You are.

I suggest you stop, for a second, breathe a little, and rethink your strategy. It's not particularly convincing.

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I am not under federal indictment or facing any of these issues. How is it to my advantage? I am hopeful that we can fix a broken system (which, by the way, is the same thing that Kerr says).

You think every system is broken and you don't actually want to discuss fixing anything. You just want to spread your hateful agenda. When it comes to discussing the details and nuances of anything, you run away every time. You don't want to talk anything through. You just want to complain about everything while telling us how smart you are and how dumb everyone else is. I wish you did just want to have honest discussions about things, but talking to you is like talking to a brick wall. A dishonest brick wall.

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talking to you is like talking to a brick wall.

Having a constructive discussion with you that doesn't degenerate into you spewing forth vitriol and thinking there is a conspiracy under every word is like masturbating with a cheese grater. An amusing concept but ultimately futile and extremely painful

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You think every system is broken and you don't actually want to discuss fixing anything.

Neither point is true.

You just want to spread your hateful agenda.

What hate?!?

When it comes to discussing the details and nuances of anything, you run away every time.

Oh, shit. I didn't realize it was *you*.

You still have this image in your head of Strawman Mike who you think I am, huh? We told you to drop that.

I'm happy to talk nuance on all sorts of issues. What I DON'T want to do is get bogged down in one of your childish semantic games in which you have no desire for honest conversation, but do wish to pretend that you're a genius.

You just want to complain about everything while telling us how smart you are and how dumb everyone else is.

I don't think I'm that smart, nor do I think everyone else is dumb. I think there are lots of people much smarter than I am, which is, in part, why I leave comments open on my site -- so that those smart people can share their knowledge.

I wish you did just want to have honest discussions about things, but talking to you is like talking to a brick wall. A dishonest brick wall.

Perhaps if you could argue without ad hominems people might actually debate with you.

Sorry, but it's difficult to take anyone seriously when this is your debate style.

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I've actually read these (thank you for the links). I found the first one interesting and comprehensive.

I disagree with the second one in part because it seems to be mired in the notion that you have transgressed the law and even if you were right to do so, you must be punished because it was the law.
The notion that breaking an unjust law (one that you acknowledge as an unjust law) is something that needs deterrence is one that find both perplexing and fascinating.

Laws are never reformed until something brings them into the spotlight, therefore the notion that deliberately doing so deserves punishment even in the case where the need for reform is agreed up, makes no sense to me. It's essentially an argument that unjust laws should remain unjust because they are the law. As far as I'm concerned if the law is unjust then breaking it should, by definition, have no punishment.

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The troll's link to the Kerr post intrigued me - I don't know that much about this case, so I'm open to all opinions - and here's the main idea of the post:

"Yes, the Swartz case does point to a serious problem with the Computer Fraud and Abuse Act. But that problem is not the definition of “unauthorized access,” as some people seem to believe. (That definition is a problem, but with the Nosal case from the Ninth Circuit and likely Supreme Court review in the next year or so, I think the Courts are likely to take care of it.) Rather, the problem raised by the Swartz case is one I’ve been fighting for years: Felony liability under the statute is triggered much too easily."

The article is extremely critical of the Swartz prosecution. It describes the plea bargain thuggery as SSDD, just like the Masnick article does.

My conclusion is that Swartz sacrificed himself to expose an unjust suspension of our right to communicate. Everyone seems to agree on this, no more, no less. Thanks, troll.

As a parent and a sister

Where was Ortiz when the HSBC case was making it way through the system. Seems like a slam dunk of a case for prosecution to prove money laundering. Unless it's easier to pressure unconnected citizens that can't call in favors for laughably reduced sentences.

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Another absolutely critical point is that regardless of whether we indict a company or agree to defer prosecution, individual wrongdoers can never secure immunity through the corporate resolution. . . . .

To be clear, the decision of whether to indict a corporation, defer prosecution, or decline altogether is not one that I, or anyone in the Criminal Division, take lightly. . . . In reaching every charging decision, we must take into account the effect of an indictment on innocent employees and shareholders, just as we must take into account the nature of the crimes committed and the pervasiveness of the misconduct.

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Protecting innocent shareholders and employees shouldn't be a shield for failing to get justice. Just because a murderer is a parent whose children will be without said parent if the murderer is sent to prison doesn't mean that we shouldn't put the murderer in prison. The HSBC settlement, along with every other such settlement, just tells rich corporations to go big with their unethical practices to make sure they get higher profits than the size of the possible fine so that they still come out on top regardless of whether they get caught.

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A Los Angeles check-cashing store, its head manager and anti-money laundering compliance officer were sentenced Monday for failing to follow anti-money laundering requirements under the Bank Secrecy Act.

G&A Check Cashing, its manager, Karen Gasparian, and its compliance officer, Humberto Sanchez were sentenced by U.S. Judge John Walker, who ordered Gasparian to prison for five years and Sanchez for eight months. The company was ordered to pay a nearly $1 million fine and sentenced to two years of probation.

I have to agree with Ortiz here. It's perfectly reasonable to only get molested by your cellmate for six months and Swartz should have been grateful for that offer. Why can't Swartz's family and friends and everyone else on the internet with any reasonable sense of justice see that?

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You forget that one of the primary lessons taught in law school for the last thirty+ years is that ethics and morals have NO PLACE in the law. Law students that hang on to ethics or morals don't get good positions - they get funneled into public defender positions until their sense of ethics and morals are so atrophied that they can serve "effectively" in other positions.

"The career prosecutors handling this matter took on the difficult task of enforcing a law they had taken an oath to uphold, and did so reasonably."

That is simply opinion that the task is difficult, much less they did so reasonably. I would understand that the prosecutors believed it to be reasonable, they had to justify doing it. I believe there are a fair number of people disagree about what is reasonable.

As for difficult task? That's quite subjective as well. Although I'm inclined to agree. I'd have to work REALLY hard to justify blindly enforcing laws that do not benefit the public and conflic with other oaths like protect and serve.

"and they recognized that his conduct – while a violation of the law – did not warrant the severe punishments"

So he was convicted?

I know the prosecutor should think he performed a crime, but to ignore that they could possibly be wrong takes a special kind of denial. Because from the charges of "unlawfully obtaining information from a protected computer" is odd because he had permission to access the computer, and he had permission to access the information. As for "recklessly damaging a protected computer", I know having a computer read from it's hard drive is normal wear and tear damage so it's hard to see that as 'reckless'. And with the access permissions I don't see how "fraud, computer fraud" can be shown.

I can't say I'm surprised though. This kind of denial should be expected when they have to cope with doing such things. Although, sometimes it is better they just keep it to themselves..

she herself needs to be on the receiving end of the same sort of charges, as does Heymann. having to settle for any deal that still gave a criminal record for doing nothing really wrong or harmful to anyone would have still given her what she wanted. she is the one that deserves to get serious jail time for contributory manslaughter! if the law here and elsewhere to do with copyright isn't changed over this, it shows what Congress thinks of justice, ie, almost nothing, preferring their contributions to continue instead of doing the job they have actually failed to do for many, many years!

Re: The Government Won

Oh I don't think they won. I think they've just begun to lose and lose big. The shitstorm brewing from this is just beginning. They cannot possibly overcome what is yet to come. The backlash from this could quite possibly be bigger than SOPA ever was.

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No one is saying Mr. Swartz didn't deserve some sort of punishment. What we're saying is that IP and MAC spoofing are not violent crimes and so Mr. Swartz did not deserve to be labeled a FELON.

You may also benefit from knowing that JSTOR, the injured party, specifically asked the prosecutors to drop the case. In other words, JSTOR thought the appropriate punishment was "NOTHING". That may give you pause about justifying the actions of this prosecutor.

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-spoof +assign imo

What Mac Changer does is spoof. It doesn't change the actual hard coded MAC on the network adapter at all. (Usually pretty hard to do without messing with the adapter's firmware) It simply broadcasts a MAC other than the hard coded one to the network and resolves the difference between the two at the client level.

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MAC spoofing isn't just "editing a setting". Typically the MAC is hard-coded into your network card. It's not like you just go into your network card configuration and modify the MAC.

And if MAC spoofing isn't a crime, then riddle me this. You have a wifi network and you use MAC address restrictions to authorize access to your network. An attacker eavesdrops on your communications, copies your MAC, and then spoof's your MAC in order to circumvent your access restrictions. Is MAC spoofing a crime this time?

Come on. Mr. Swartz crossed the line when he began evading the blocks that MIT and JSTOR implemented to stop him. It's a simple fact that he did something wrong. But it was misdemeanor wrong, not felony wrong.

Re: Re: Re: Re:

The difference, very obviously, is whether or not you were using the MAC to deny access at all (authorization), or if you were using it on the fly to attempt to mitigate a perceived misuse of your service(ToS agreement).

Re: Re: Re: Re: Re:

Excuse me, Shane, but I really think that's inappropriate. I *do* care. Have you read everything else I've said about this case? When I see what happened to Mr. Swartz, I see how easily it could happen to me or anyone else who is powerless. It's terrifying and I think Ortiz and Heymann were way, way out of line and they deserve to be punished. Their careers should be ended, and we should make an example out of them.

But you simply cannot argue with the fact that MIT/JSTOR tried to stop him and that he engaged in spoofing in order to circumvent their blocks. That's just a fact. Come up with reasonable excuses for changing your MAC all you want, but we all know he was smart enough to know what was happening when they blocked his MAC.

Again, though, what he did was NOT A FELONY. But he clearly and intentionally was working around their weak attempts to block him.

Re: Re: Re: Re: Re: Re:

While I appreciate you taking offense, and realize that you may feel yourself to be someone who is trying to be rational, I beg to differ - and vehemently so - with your logic. You and others have chosen to ignore my previous post, so allow me to put it right where you can see it.

"medical device company decided to bypass FDA clinical trials and use bone cement in the spines of humans. Given that the cement wasn't properly tested, it should come as no big surprise that a number of people died as a result."

"Despite the fact that HSBC admitted to laundering billions of dollars for Colombian and Mexican drug cartels (among others) and violating a host of important banking laws (from the Bank Secrecy Act to the Trading With the Enemy Act), Breuer and his Justice Department elected not to pursue criminal prosecutions of the bank, "

"Lay those two cases down beside that of a 26-year old kid who did the online equivalent of checking out too many books out of the library. For doing that, Aaron Swartz was initially charged with four felonies. The prosecutors in the Synthes case agreed to charge the executives only with one misdemeanor each. In the instance of HSBC, they used their discretion to avoid pursuing criminal charges altogether."

If you are defending the prosecution on the Swartz case.... at all..

Please just go away now.
===========

Your arguments about what he did being "wrong" in any sense whatsoever fail to address the fact that it is both the policy of IP to hide information needed to keep the public informed, and that the egregious abuse of the prosecutorial power is regularly one sided in favor of the powerful and the rich.

If you want me to think more kindly of you, you will stop making excuses for high crimes and misdemeanors.

grrr

Your arguments about what he did being "wrong" in any sense whatsoever fail to address the fact that it is both the policy of using IP to hide information needed to keep the public informed, and the egregious abuse of the prosecutorial power in regularly one sided ways in favor of the powerful and the rich, that is what is truly wrong here.

Re: Re: Re: Re: Re: Re: Re:

Oh, I saw your post, and even commented on the article it pointed at. Elsewhere in these comments, I too have posted a series of links detailing specific deals and settlements that Carmen Ortiz was instrumental in implementing - deals where no person ever served time or even had to plead guilty to anything, whose crimes were significantly more harmful than Mr. Swartz's actions.

I understand and share your feelings about the two-tiered system of justice, where the powerful pay cost-of-business level fines and no one goes to jail even for heinous crimes, while the powerless are imprisoned without mercy for trivial, victimless crimes. I find it as offensive as you do, and think that the sentences ought to be reversed, with Mr. Swartz paying fines and the executives getting incarcerated.

To be crystal clear, my opinion is that this matter should have been settled out-of-court by Mr. Swartz and MIT/JSTOR. It was handled by JSTOR pretty well - "give us the hard drive, kthxbye". I don't think charges should ever have been filed by anyone. But I do believe JSTOR and MIT would have been justified in requesting a small out-of-court settlement (no admission of guilt) based on the inconveniences they suffered (go read the indictment, cut out the trumped up bits, and he still did this over a long period of time)

I'm not quite sure how one mistakes a desire for accountability for everyone's actions and proportional punishment with excusing high crimes.

Re: Re: Re: Re: Re: Re: Re: Re:

I can't see as he did anything at all wrong. The accusation is he somehow inconvenienced JSTOR and/or MIT. MIT has their policy in place specifically to enable folks like Aaron. JSTOR is a business whose model locks important information behind a paywall - information that people need in order to be informed citizens. I find them to be the ones in the wrong, and the only good thing I can say about them is they were not the ones who pressed charges.

My understanding is he already apologized to them, returned(?)/deleted the downloaded articles, and even paid them some small settlement. This despite the fact that I imagine he feels much as I do that JSTOR is the one in the wrong, along with the entire IP infrastructure of our nation.

I do apologize for my tone inasmuch as it seems to have struck a nerve with you though. It just seemed the tack you were taking was one of trying to find some little shred of something to give two sides to the story, whereas I really do not think that is warranted.

Re: Re: Re: Re:

And if MAC spoofing isn't a crime, then riddle me this. You have a wifi network and you use MAC address restrictions to authorize access to your network. An attacker eavesdrops on your communications, copies your MAC, and then spoof's your MAC in order to circumvent your access restrictions. Is MAC spoofing a crime this time?

Nope. The MAC spoofing itself isn't the crime. The unauthorized access may be though.

Once again, you can't blame a tool for the way a person uses it.

I choose not to let any public wifi I use know my laptop's actual MAC address. Anonymity has always been upheld by US courts as necessity for a democratic society.

Re: Re: Re: Re: Re: Re:

Do you consider blocking a specific MAC address the equivalent of revoking authorization for access to the associated hardware?

No. I consider it to be what it actually is - blocking a specific MAC address. Not much different than using CallerID to block a phone number. It doesn't stop that person from using *67 or using a pay phone to call you anyways.

Also I'm not sure how "authorization" really plays into this since MIT's network, in the words of one expert witness, lacked "even basic controls to prevent abuse". (Source). I'm not wholly convinced there was any "authorization" to begin with.

Re: Re: Re: Re: Re: Re: Re:

I know about MIT's open network, but come on...if your MAC gets blacklisted - twice - they're trying to kick you off their network. Sure, there are easy ways around it - like, say, getting a second computer - but come on, don't you think there's a reason they never needed "even basic controls to prevent abuse"? Because people were polite and didn't abuse the system.

Again, because it seems like everyone thinks I'm on the prosecutor's side - I'M NOT. But Mr. Swartz was no angel in this matter and he deserved to be held accountable for what he did. I truly believe this could and should have been handled entirely in private by Mr. Swartz, MIT, and JSTOR.

Re: Re: Re: Re: Re: Re: Re: Re:

Again, because it seems like everyone thinks I'm on the prosecutor's side - I'M NOT. But Mr. Swartz was no angel in this matter and he deserved to be held accountable for what he did.

Yes, I know you don't think what Swartz did reached felony level and also are not happy with the DOJ's handling of this case. You also believe he did commit some sort of crime, albeit only a misdemeanor.

I'm still trying to make up my own mind if what he did was "wrong" in any form of the word.

I am what some would call a hacker at heart. It's in my very nature to push the limits of any technology. It's how I learn.

Re: Re: Re:

...and what about MIT, which was put to the time and expense of trying to figure out and rectify what was taking place. JSTOR was not the only party having a stake in this matter.

Do you have a citation for that?

From my understanding MIT's network was extremely open (no DHCP authorization) and didn't require registration or even have a TOS clickwrap.

I know JSTOR's network guys were playing a game of cat and mouse (and sounds to me a bit like their geeks might have actually been enjoying the challenge) with Swartz, but I haven't heard about MIT actually doing anything or spending any resources on this.

Re: Re: Re:

No one is saying Mr. Swartz didn't deserve some sort of punishment. What we're saying is that IP and MAC spoofing are not violent crimes and so Mr. Swartz did not deserve to be labeled a FELON.

Did MIT request that Mr. Swartz be prosecuted? I am not aware of any request from MIT on that matter, one way or the other. Even if MIT wanted him prosecuted, do you really believe his crimes rose to the level of FELONY?

Please, pretty fucking please, people, can we stop with the "he deserves some kind of punishment" straw man? NO ONE SAYS HE SHOULD GO FREE. NO ONE. NO. ONE. What we're all saying is that he shouldn't have been charged with felonies. Felonies should be for people who are a danger to society, like people who commit violent crimes. Not people who inconvenience a network administrator.

Re: Re: Re: Re: Re: Re: Re:

And what does this "settlement" or exchange of coin exactly means to JSTOR or MIT? Either it's a stupid amount that would make Swartz suffer, or is so little as to be a slap on his wrist and mean the equivalent of pocket change?

Why people who get "caught" doing the equivalent of planting a bag of poo in your front door must have some sort of money settlement? Can't they just agree that the action was unwelcome and just promise not to do it again? (which basically is *what already happened*). Or is it to appease the God of Capitalism, that Coin must grease the Palms of Due Process or something?

I really don't get this point that someone "has" to be punished at all when the parts basically agree not to punish each other (except by involving the Spooks which pretty much everyone agrees was a bad mistake).

Re: Re: Re: Re:

Re: Re: Re: Re:

But he is a felon. He knowingly and deliberately and with cunning to hide his tracks hacked a system in a major, dramatic way to destroy *an institution* entirely and prevent *choice* on the Internet to have pay walls and walled gardens. I'm for prosecuting such Bolshevism in exactly the way it was indeed prosecuted -- with a series of careful allegations, that the defense was free to reject, and ultimately a plea bargain of 6 months. That's exactly right.

Re: Re:

Re: Re: Re:

Yeah, I rtfa.

I think it’s important to realize that what happened in the Swartz case happens it lots and lots of federal criminal cases. Yes, the prosecutors tried to force a plea deal by scaring the defendant with arguments that he would be locked away for a long time if he was convicted at trial. Yes, the prosecutors filed a superseding indictment designed to scare Swartz evem more in to pleading guilty (it actually had no effect on the likely sentence, but it’s a powerful scare tactic). Yes, the prosecutors insisted on jail time and a felony conviction as part of a plea. But it is not particularly surprising for federal prosecutors to use those tactics.

Make up some bullshit interpretations so that what AS did meets the standards of a Federal crime, go all medieval juris doctor on his ass to accomplish "special deterrence", then take a bunch of smug victory laps while while tut tutting the obvious foolhardiness of anyone challenging the might and majesty of the church of Rome Department of Justice.

All over something many people think rises to perhaps the level of stupid, let alone felonious.

Perhaps if AS had hidden his laptop in a special box designed to fit in the teller window at a bank he wouldn't have faced such a shitstorm.

Re: Kerr at Volokh

Summary: "The little snot was tying to change the world in a way I think is illegal, so he *must* be punished. And the 50 years was just a fairy story, and the courtroom is full of sparkles and fairness."

it's an abuse of the 5th amendment

I think it's fine that an early guilty plea can lead to an element of leniency. Without the option, courts would fill up and the system slow down even more.

However, sentences should be prescribed to reflect the severity of the crime, and must not be set purely to provide leverage to prosecutors to force an admission of guilt. That spits in the face of due process.

Re: it's an abuse of the 5th amendment

There's something you're missing here, which is that the current plea-bargaining system also abuses the Equal Protection clause.

The thing is, rich people can typically afford lawyers. Poor people are typically stuck with public defenders. There are some damned good PDs out there, and some awfully bad lawyers, but generally speaking you get better representation if you pay for it. An innocent person, given the option of a plea bargain, is more likely to go to trial if they're rich.

So, not only does the current system abuse the 5th amendment (I assume you're talking about the "indictment of a Grand Jury" part), it also disproportionately encourages poor people to plead guilty. Given the correlations between race and income in the US, not to mention the disproportionate imprisonment rates for certain racial minorities, I think this is a big problem.

Re: Re: it's an abuse of the 5th amendment

I think it is sad that the issue ends up being made racial more or less because no other remedy exists. Only very limited groups of people qualify for special protection as a minority, whereas what is really needed is reform that protects ALL poor people.

Indeed, justice being best when it is blind to social status, it really should be applied to all people. The solution is ridiculously simple. Both the prosecution and defense should be public services.

Watch how fast the wealthy move to make sure the defense half of the equation gets its pay once they can't opt out of the public option.

The ultimate solution, though, is to do away with "welfare for the rich", and IP is a huge part of that. Communal systems do not work well. There is no motivation to try. You have one option, and they know it. Likewise, private systems with protections such as IP allow people to be lax, since the IP law means you have nowhere else to go.

It all boils down to tearing down the concept that there need to be artificially created benefits for excellence in order to promote excellence.

Re: it's an abuse of the 5th amendment

and become a convicted felon without harming anyone? or even the individuals that he supposedly "harmed" pressing charges (charges were pressed instead by the prosecution from my understanding). I personally would rather have my day in court and defend my innocence to the best of my ability... and if I were to be sent down the river as it were, at least I would have gone down swinging rather than simply bend over to get screwed

Much like people in charge of censoring in China for instance she sees herself as a reasonable, merciful and righteous person. People in power should be changed frequently as power corrupts. I'd not be surprised if she REALLY believed that she did everything right.

I tend to keep my distance from power even when I can clearly grasp it. It seduces. It corrupts. Some need vast amounts of power to get corrupt but in the end very few won't be corrupted by absolute power like Ortiz had.

Simple Solution

The solution should be simple - if a plea deal is offered, the sentence should offered for th acts committed (the entire action, whether 1 or 20 charges) should be a matter of record. This then should be the "recommended" sentence, and at trial - if found guilty - it would be up to the prosecutor and defence to argue why the snetence should be more or less.

Simply put, there should be NO penalty for insisting on your constitutional right to a fair trial.

The prosecutor's behaviour here is no different that when they insist on heavy-handed attacks on teens sexting; taking a law designed to take handle mercenary predators and applying it to innocent normal behaviour, simply to boost their "conviction numbers".

Carmen Ortiz and double standards

“Medical device and pharmaceutical companies can use post-market studies legitimately to obtain information about how their products work in the field, but they cannot use those studies, and the honoraria associated with them, to induce physicians to select their products. Cardiologists and electrophysiologists should make their decisions on which pacemaker or defibrillator to implant in a patient based on their independent medical judgment, not based on how much the manufacturer is paying them to implant the device,” said Carmen Ortiz, U.S. Attorney for the District of Massachusetts.

“We will not tolerate corporate attempts to profit at the expense of the ill and needy in our society -- or those who cut corners that result in potentially dangerous consequences to consumers,” Carmen M. Ortiz, the U.S. Attorney in Boston, said at yesterday’s news conference.

Hey, at least someone was found guilty this time. His name was SB Pharmco Puerto Rico Inc. I don't think he had to serve any time in prison, though, and I doubt he had problems finding a new job, voting, or owning a firearm.

“Forest Pharmaceuticals deliberately chose to pursue corporate profits over its obligations to the F.D.A. and the American public,” Carmen Ortiz, the United States attorney for the District of Massachusetts, said in a statement Wednesday.

Hey, someone was found guilty of a felony this time! His name was Mr. Forest Laboratories. However, just like Mr. SB Pharmco Puerto Rico Inc. I don't think Mr. Forest Laboratories had to serve any time in prison, despite being a felon.

These companies actually hurt people. And yet not a single person served any time in prison. Aaron Swartz didn't hurt anybody, and the "victim" JSTOR even asked the prosecutors to drop the case - and yet they refused to give Mr. Swartz any kind of deal that didn't involve being labeled a felon and thrown in prison, as if he was some kind of murderer or rapist or money launderer.

This just proves that the "Justice" system is two-tiered. If you're large and powerful, you just get "cost of business" fines and nobody has to be convicted or thrown in prison. If you're small and powerless, the book will be thrown at you without mercy.

"Aaron's Law" wouldn't have had any effect on Aaron's potential sentence. Woops. Funny how you don't report the truth. But then again, you and I both know that you don't care about truth. Note what Kerr said about the additional charges.

You're a total fake and coward, and you know it. And you're really disgusting in the way you're using this sad situation to your own advantage.

Re:

So you won't post under one user name, you won't disclose your obvious vested interest in slamming Swartz and defending the prosecutors, and resort to lame ad homs, but it's Mike who's the "fake and coward". Right...

Mike - I wasn't impressed by Ortiz's statement either, but a couple of your statements are pretty off the wall. This, for example:

... she must know that it is quite rare for judges to issue sentences more lenient than what prosecutors put forth from a plea bargain.

Mike, I have no idea where you're getting this information, but it's simply not true. Judges frequently impose sentences lower than what prosecutors seek. And it is rare, especially in Massachusetts, for prosecutors and defendants to come into court with a specific, agreed-upon sentence on which the plea is dependent (a so-called "c1c" plea). Judges understandably don't like these. Rather, what usually happens is that the prosecutor agrees to recommend a specific sentence in exchange for the plea. The defendant is free to argue for something lower, and courts can and do sentence lower than that recommendation, especially in case LIKE THIS ONE involving some novel and/or highly debatable legal issues.

And this:

The statement is complete hogwash, frankly. If what she claims is true -- that they recognized "his conduct – while a violation of the law – did not warrant the severe punishments authorized by Congress and called for by the Sentencing Guidelines in appropriate cases" then they would not have piled on more charges in the indictment in September.

Again, Mike, you're making these sweeping pronouncements even though you're not very familiar with the procedures of the criminal justice system. Prosecutors often get a superseding indictment (technically it's the grand jury that returns it, but the prosecutor drives the process) to fine tune and be more specific about what the charges are. Sometimes that means more charges or more serious charges, but often it's because prosecutors have had more time to review evidence and fine tune legal theories. What it looks like happened in Aaron's case is that prosecutors initially charged single counts of fraud for an entire series of acts. And they must have realized that some of their theories were stronger than others, so they broke them up into separate counts so that even if they lost on one theory, they might win on another. Even if you think all of the charges were bogus, I think most of us would agree some of their theories were less bogus than others. For instance, even if we all think the initial access through MIT's wifi was fine, some people are less sure about what happened later with the wiring closet. So, assuming you're a prosecutor who thinks this is a decent case, there's a perfectly good reason to get a more specific indictment with more specific charges. It's not necessarily vindictive. And even if it were vindictive, the way the sentencing guidelines and most judges work, adding more counts of the same charge would be very unlikely to change the eventual sentence. The prosecutors and Aaron's very good lawyers would know all this. The superseding indictment would be harder to win against at trial, because even if you won against some charges (like the early wifi access), you could lose on some of the other charges. But making charges more specific is actually a good thing, so dismissing it as "hogwash" is a mistake.

Re:

As a foreigner, I'm surprised that Americans aren't more alarmed by the workings of their criminal justice system. I don't know what ought to scare me more about living in the United States--that I might be the victim of a crime (which happens), or that this ferocious prosecutorial system might one day turn its wrath on me. I'd rather be mugged than threatened with years in jail for something I didn't even know was a crime. Is this justice system actually on my side? I'm by no means sure--an astounding state of affairs.

At a conference I attended recently, I vented my preoccupation with rogue prosecutors, an ever-proliferating criminal law and the vanishing rights of the accused on a fellow attendee--a lawyer and former prosecutor. When I'd said my piece she said, "But you have to remember that nearly all of the people who are prosecuted are guilty." For half a second I thought she was joking and I started to laugh. But she wasn't joking.

Me Too

Reasons

Americans are in love with the Reagan era, when we saw ourselves as this global force for good fighting Communism. To a certain extent, I even believe that that is what we were, although obviously there have always been problems even with that era.

In the wake of the end of the Cold War though, we have been a nation without a rudder, and all the power we ginned up in order to face down the Soviet Union is slowly being turned inward against our own people, and diverted on the international front towards promoting our banking industry's interests at the expense of people who have no chance of defending themselves from our massive military.

No one wants to admit that the problem IS the USA. The shame is too much to swallow. A lot of it is pride. So they make excuses, like the lawyer you spoke to.

That's obviously just my opinion, but it's the sense I have after watching it happen over the last 30 years.

Re:

Mike, I have no idea where you're getting this information, but it's simply not true. Judges frequently impose sentences lower than what prosecutors seek. And it is rare, especially in Massachusetts, for prosecutors and defendants to come into court with a specific, agreed-upon sentence on which the plea is dependent (a so-called "c1c" plea). Judges understandably don't like these. Rather, what usually happens is that the prosecutor agrees to recommend a specific sentence in exchange for the plea. The defendant is free to argue for something lower, and courts can and do sentence lower than that recommendation, especially in case LIKE THIS ONE involving some novel and/or highly debatable legal issues.

Thanks for the feedback. I am aware of multiple cases where judges went above and beyond what the plea deal was -- though, admittedly, those were not in Massachusetts. I did try to research stats on how often judges matched the initial plea deal, but could not find them. However, since I've seen it happen multiple times, it seemed not uncommon.

Again, Mike, you're making these sweeping pronouncements even though you're not very familiar with the procedures of the criminal justice system. Prosecutors often get a superseding indictment (technically it's the grand jury that returns it, but the prosecutor drives the process) to fine tune and be more specific about what the charges are. Sometimes that means more charges or more serious charges, but often it's because prosecutors have had more time to review evidence and fine tune legal theories. What it looks like happened in Aaron's case is that prosecutors initially charged single counts of fraud for an entire series of acts. And they must have realized that some of their theories were stronger than others, so they broke them up into separate counts so that even if they lost on one theory, they might win on another.

I can understand the reason why they would do this, but I stand by the initial assessment of hogwash. If they really believed this was such a minor deal, then they could have easily specified that and NOT told his lawyers that they were going to seek many years in jail and announced the maximum sentence in the press release.

The superseding indictment would be harder to win against at trial, because even if you won against some charges (like the early wifi access), you could lose on some of the other charges.

I'm not sure how that makes it "harder" to win. You seem to be arguing that it actually makes it easier to win, since they now have more theories to run up the flag pole.

Re: Re:

I can understand the reason why they would do this, but I stand by the initial assessment of hogwash. If they really believed this was such a minor deal, then they could have easily specified that and NOT told his lawyers that they were going to seek many years in jail and announced the maximum sentence in the press release.

I'm not suggesting that prosecutors thought the initial case was just some "minor deal" (if that's what you mean). It's just that you originally said Ortiz's statement (that her office didn't think Aaron deserved anything like the statutory maximum) was "hogwash" because if it were true, her office wouldn't have piled on more charges in September. I was offering one possible (and I think likely) alternative explanation as to why the office would add more charges, even if they weren't trying to put him in jail for many years. The truth, from various defense attorney quotes, is that the prosecutors eventually offered 4-6 months for a felony guilty plea, but that all along they were apparently telling the defense attorneys that if the case went to trial, they'd ask for something like 6 or 7 years. I don't know if that was true, or just bluster, but that is apparently what the prosecutors were telling them.

I'm not sure how that makes it "harder" to win. You seem to be arguing that it actually makes it easier to win, since they now have more theories to run up the flag pole.

That was my confusing use of the second person singular. I meant that it would be harder for Aaron or another defendant to prevail against the superseding indictment with each of the government's legal theories and the alleged acts separated out into discrete charges. Because even if a judge dismissed, or a jury acquitted on, the weaker charges, the stronger ones might still lead to a conviction. In contrast, if the prosecution lumps multiple things into a single count, then if any part of the government's theory fails, then the defendant wins.

it's obvious that Cortiz is going to try to dig herself out of the shit-pit she has dropped herself in. the trouble is, heaping more lies on to the top of what she has already put out is exactly the way not to do it. even if what she said was true, she would have done her best to make sure the case was heard by the most ardent copyright maximalist judge going, meaning that regardless of what sort of deal was struck, the judge could have ignored it completely and still dished out the 50 years in jail. in that situation, there is no way that Cortiz would have even tried to alter that sentence. she would have walked away with a 'sorry, cant help you' comment and Aaron wouldn't have seen the light of day again. all over files that were already in the public domain and should have been freely available to everyone!!

Re: Re: Fuck DOJ

Time will judge her

While she may get away with her actions in this case, justifying and outright lying about them to the public. In private, her family and her conscience ultimately will judge her for what she did. If she has no conscience, then, as a true sociopath, she's perfectly positioned to become the next governor of Massachusetts. My only hope is that people of that state have a long memory for such things and her opponent will hammer home the "she drove a 24 boy to suicide" over and over and over.

While she may never see the consequences of her actions, time may judge her more harshly than if she was actually removed from office and stripped of her law license.

Try This Sick Crap on for Size

"medical device company decided to bypass FDA clinical trials and use bone cement in the spines of humans. Given that the cement wasn't properly tested, it should come as no big surprise that a number of people died as a result."

"Despite the fact that HSBC admitted to laundering billions of dollars for Colombian and Mexican drug cartels (among others) and violating a host of important banking laws (from the Bank Secrecy Act to the Trading With the Enemy Act), Breuer and his Justice Department elected not to pursue criminal prosecutions of the bank, "

"Lay those two cases down beside that of a 26-year old kid who did the online equivalent of checking out too many books out of the library. For doing that, Aaron Swartz was initially charged with four felonies. The prosecutors in the Synthes case agreed to charge the executives only with one misdemeanor each. In the instance of HSBC, they used their discretion to avoid pursuing criminal charges altogether."

Twisted

This administration sold itself on 'change'. They wanted transparency (closed and secret inaguration), access to all (just upped the ante for petitions by a factor of 4 because people were actually using it), following the law (shipping guns to Mexico and lying about it), supporting our amabassadors (letting them die in Libya in a total cluster f$$K), protecting and encouraging our industries to remove us from dependence on foreign oil (they mounted a full fledged war on coal miners in this country), securing our borders (everyone who snuck in gets free everything and we are not going to enforce any laws on immigration in an election year), and preserving our valuable monetary assets (can you say Solyndra).

Re: Twisted

FYI, regarding the "shipping guns to Mexico thing", I assume you're talking about Fast and Furious. I happen to have read about this a great deal, and you might be surprised to know that the guns were not made, owned, or bought with government money. They were straw purchases that the Phoenix prosecutor Emory Hurley refused to give ATF probable cause for pursuing. The guns came from private businesses, the money came from Mexican drug lords, and the ATF sat by and watched because their prosecutor wouldn't give them the OK to arrest anyone. Up to and including someone who was on food stamps while dropping over $300k in six months on firearms.

Don't get me wrong. I don't like Obama, at all. But if you're going to throw vitriol at him, at least be factual.

Re: Re: Re: Re: Twisted

"Everyone who snuck in" is obvious hyperbole. The Obama administration has refused to cooperate with much of anything regarding investigating "Fast and Furious" despite its claims to want more transparency.

Re: Re: Re: Re: Re: Twisted

Obvious hyperbole, yes, whose intention is to convey a general message - that the Obama administration is weak on immigration - that is still provably false. Did you even read the comment you're replying to? Obama's administration is deporting people even faster than the Bush administration. It's not just hyperbole, it's partisan bullshit, that's what it is.

Regarding Fast and Furious, again, did you read the comment you're replying to? All I said was that the government was not shipping guns to Mexico. Again, that's not just hyperbole, it's partisan bullshit.

And finally...did you read the comment the other guy was replying to? In general, I don't like Obama. He's done some things that were okay, but on the whole I'd rather have someone else entirely. To start with, he assassinated a 16-year old American citizen because his father was allegedly a terrorist mastermind. That's disgusting and spits in the face of our nation. He wanted to move Gitmo's defining violation - indefinite detention - to Illinois; what use is shutting down Gitmo if you keep doing what makes Gitmo wrong? And launching cyberattacks on other nations...that's pretty wrong too. Relentless prosecution of whistleblowers like Kiriakou, Drake, Manning...failure to prosecute anyone on Wall Street (come on, even Saint Reagan and H.W.Bush managed to prosecute over 1000 people during the Savings and Loan crisis...)

Re: Re: Re: Re: Re: Re: Twisted

One of the right's complaints about Bush was he was soft on immigration. True. Obama is harder on immigration? I'll grant that, though I really don't care. My point is that no progress has been made on fixing immigration.

I just feel you are only disappointed in Obama insofar as he has not been liberal enough. I, on the other hand, am disappointed in him from every conceivable direction, and can relate to conservatives who have concerns like Barnes'. Of course, I never voted for him to begin with... I just happen not to have voted for Romney either. I left the darned spot blank for the first time since I was ... what, 25 I guess.

Why Aaron Did what he Did

If you wanted to educate yourself about the issue of prosecutorial discretion, you would run into many, many links such as the one above.

These sorts of artciles - scholarly articles with research to back them - are hidden from public view by the government through IP law. The scholars themselves are often at odds with the institutions they work with and the government. Most of them WANT their research to be used to educate the public, but the legacy industries FORBID IT.

THAT is why what he did was a moral imperative, and in NO WAY WRONG. We need to step up and stop the purposeful obfuscation of facts we need in order to be informed citizens.

All this blither about Aaron knowing he did something wrong and needing to be willing to pay the consequences is HOGWASH. What is wrong is that our government is working hand in hand with thieves and liars to destroy our self sufficiency.

Let's face it. This was revenge and a power play by the government. They were angry that Aaron challenged the government when they overreached and tried to censor the Internet and now was payback time.

The sad irony is that Aaron devoted his energy into helping people get access to information. If he had taken his very considerable talents with computer code and focused on accumulating wealth, as so many lesser people have done, he could have hired an army of slick lawyers with inside connections to defend him and the prosecutors would have backed off. (Just look at how aggressively they have prosecuted the bankers, NOT).

Exactly

And that's what's wrong with the way things are. People are keen to defend the status quo because they, too, hope to be rich some day. They have a hard time identifying with someone whose goals are so foreign to them, so they seek excuses for why the exceptionally decent are in fact deficient in some way.

I've just heard of this story today

And it is outrageous. Maybe the only way to reign these cretins in is to seriously slash their budgets. Then they will be forced to just focus on REAL crime, that harms people.
So everyone write your legislator and send them simply written synopsis of cases like this and indicate that here's a place the US could save billions. If these kinds of resources are prosecuting "crimes" like this, we are dumping too much of our taxpayer dollars into this system. We should be fixing roads and railways, not paying for this. You have to cut the leg$ out from under them...

Suicide

Shame on you!!!! You thought you could make a name for yourself with this case!!! You have this person's blood on your hands forever! You can never, ever undue this. Is a career really more important than a human life?

Shame

I know that there is little I can say to abate the anger felt by those who believe that this office’s prosecution of Mr. Swartz was unwarranted and somehow led to the tragic result of him taking his own life.

An apology, admission of fault or resignation would do it. Alas, Carmen Ortiz shows no remorse, no shame. Her profession of sympathy is less than worthless, it is offensive

She is at best, incompetent since her actions manifestly do not serve the people; a less charitable view might consider her malicious. In any case, she is manifestly unfit for public office, a fact that future voters should be reminded of when she next surfaces.

Shame

I know that there is little I can say to abate the anger felt by those who believe that this office’s prosecution of Mr. Swartz was unwarranted and somehow led to the tragic result of him taking his own life.

An apology, admission of fault or resignation would do it. Alas, Carmen Ortiz shows no remorse, no shame. Her profession of sympathy is less than worthless, it is offensive

She is at best, incompetent since her actions manifestly do not serve the people; a less charitable view might consider her malicious. In any case, she is manifestly unfit for public office, a fact that future voters should be reminded of when she next surfaces.

Carmen Ortiz' bogus statement

No surprise on this note from Ortiz,
after all, we know how psychopaths are, without any empathy for other people.
If her name was Mrs. Javert (les miserables) or Smith (Matrix), it wouldn't also surprise me at all...

Ortiz, Heyman and Swartz

We live in and continue to condone the prevailing Darwinian competitive system of human interaction -- particularly in economics, education and politics -- In such a competitive system its those like Aaron Swartz, who are empathetically developed and evolved, that are at a serious personal disadvantage -- What hope do you think we have to eventually see people of mature character making the critical decisions as CEOs, heads of government and of the organs of the state, when they never ever got into those positions using any real demonstration of empathetic development. We get actors, frauds and shysters --anyone who can seduce you or menace you out of your trust! --- Grow the f*** up! Empathy is a serious handicap in competitive economics and politics whereas psychopathy is not!!

White House petition to Remove UUSDA Carmen Ortiz from office

Sign the White House petition to “Remove United States District Attorney Carmen Ortiz from office for overreach in the case of Aaron Swartz.” It's over 25K strong already, but let's make a BIG statement and get that number up to where the petition and the White House's response will make TV news.

Brilliant evaluation of statement

This article is brilliant and very eloquently written. I think that everyone aware of the case should take the time to read this. Hopefully soon this case could be used to take power away from prosecutors and even out the playing field. I am fed up with government officials abusing their powers and ruining our country, it's time to take a stand!

I suggest you stop, for a second, breathe a little, and rethink your strategy. It's not particularly convincing.

Shouldn't the focus be mental health?, and the lack of real support for those who suffer with it.
It's disturbing to see the amount of articles and posts that have gone up on the net AFTER the guy killed himself; where were his "friends" BEFORE he ended his life?

Re:

"Like hell you do. Its one big circle jerk here. Anyone with a different view is berated to the point of insanity."

Probably because most people who have a "different" view is the view of "moar copyright!", "SOPA and PIPA were good!", or "Paywalls are awesome!" Or they flat out attack people and troll.

"Shouldn't the focus be mental health?, and the lack of real support for those who suffer with it."

Agreed, problem is, that puts the country into a nanny state, can't waste our tax dollars on being "soft" on people. Nope, we have to be tough on crime.

That was sarcasm (most of it), if you couldn't tell.

Honestly, the problem with mental diseases is that... Well, no one really thinks it's a problem. You have a problem, but seeking help? Yeah, there's a pretty major social stigma for seeking mental help.

It's either suffer in silence, or get help and be branded a loon by society.

Got a drug problem and seek help? You're doing yourself and everyone a favor. Got a mental problem and you seek help? You're a freak and a danger to everyone around you.

So, until societal norms change, things like this are going to continue to happen, simply because no one goes to get the help they need.

"It's disturbing to see the amount of articles and posts that have gone up on the net AFTER the guy killed himself; where were his "friends" BEFORE he ended his life?"

Look up. That's the problem, we turn a blind eye to people who might be suffering because, well, if they need help, they'll ask for it, despite the fact that, most people don't ask for help when they need it when it comes to their mental health.

Ask yourself this, how many times, when you were growing up, did you get told these same things?

Those three phrases really indoctrinate people into thinking like each other. Don't talk to those you don't know, ignore problems of others that you see and just shut up and sit down, it doesn't concern you.

That's something we're taught as kids all the way through adult-hood, and then we turn around and teach that to our kids.

Do like

We do seem to need to learn to be more concerned with our fellow man.

I have recently been thinking that, even worse, we as a species seem to have an ingrained pull towards humiliating people. It always reminds me of times I have seen a sick bird being mercilessly torn at by the rest of the flock. It's a very frightening and apparently innate biological drive common to many species to tear apart the weak.

Apropos of nothing I guess, except to say again how much I enjoyed your thoughts.

Huh?

Even if the focus is on mental health, how is it a good thing what the prosecution did?

It's been brought up many times. The prosecution knew he was struggling, and yet they trumped up these charges and kept piling on the pressure.

I don't think it was his friends and family that let him down. I think he came far to late to an understanding of human nature, and before he could drag himself through the process of coming to terms with it, he ended up capitulating to hopelessness and ended his life.

That may just be me projecting, but he and I seem to share a lot of similar values, especially where access to important information is concerned. How can we have a free and open society of informed citizens without more open information? How can we elect the correct officials without more open information?

And then the government does something this overboard, and society just sort of keeps on rolling along.......

That will eat at you if you have not prepared for yourself an internal dialogue that gets you out of the downward spiral that such thoughts can create.

I grew up in a family of 10, and I can honestly say that the only part of what you wrote that ever applied to us was "don't talk to strangers".

In our home a problem was a problem regardless of who's problem it was. We all did what we could to find a solution.
"Sit down shut up" never, all our voices counted and were heard; not to imply that we always got what we wanted, but we were never silenced.

"Honestly, the problem with mental diseases is that... Well, no one really thinks it's a problem. You have a problem, but seeking help? Yeah, there's a pretty major social stigma for seeking mental help."

That might held some truth in the 1950's and 60's (even into the 70's?) but absolutely not in this day and age.

Re: @ silverscarcat

""Honestly, the problem with mental diseases is that... Well, no one really thinks it's a problem. You have a problem, but seeking help? Yeah, there's a pretty major social stigma for seeking mental help.""

"That might held some truth in the 1950's and 60's (even into the 70's?) but absolutely not in this day and age."

I call bullshit on that.

If I said that I spent time in a mental psych ward, the first thing that would pop into your head was someone with a straight jacket on sitting in a completely padded room while doctors and nurses walked by.

Lessig is to Blame -- and So Are You

You and the rest of the tech press are despicable for not reporting the factual news of the six months' plea bargaining BEFORE Swartz's suicide (and perhaps because his lawyer manipulated the revelation of this truth to defend his client) and certainly AFTER his suicide when the lawyer ADMITTED this plea bargain -- which is certainly reasonable and lawful given the magnitude of the crime, and its purpose as a dramatic "propaganda of the deed" to try to smash the pay-wall and walled-garden systems of how universities wish to manage academic journals. When hackers deprive us of choice in this coercive way, it is right and just to prosecute them.

It doesn't matter if charges are added as fit the crime because the discussion all along, as Ortiz and *even the lawyer* admit, was about either a plea for a very lenient sentence or some far lesser sentence if it were put to a jury trial. You're forgetting about the media circus YOU would have created around an actual jury trial -- and even Swartz and his family might have wished to avoid THAT.

You must admit: There has never been a hacker ever in the US or UK who has ever remotely served anything like these sentences -- in fact some of them get out of jail free with the Asperberger's card or other extenuating circumstances -- or they turn state's evidence like Sabu. So it is utterly irresponsible for you to keep scarifying with these literalisms AND you have to ask yourselves whether you are in fact aiding and abetting a climate of intimidation that could have acted on Swartz's psyche -- when in fact he would have known about the plea offer and the likelihood -- as Ortiz indicated -- that he could face even just probation! Shame on you!

You binary geek thinkers also refuse to consider how precedent law plays a role in our system; and how a judge is separate from a prosecutor and will reach his own conclusions about how to *apply* the law in a given case. There is absolutely no indication anywhere that Swartz would have served anything like 7 years, let alone 35 or 50, and you're just making this up in service of your despicable copyleftist cause.

If we're to blame people beyond Swartz for this tragedy, I blame Lawrence Lessig, Cory Doctorow, and all his other mentors who knowingly incited him to this act yet pulled back and didn't defend him at the end.

When you like it or not, the plea bargaining system is in fact what enables enormous numbers of people to go free doing just community service or getting sentences to time served in pre-trial. You're writing about the system in an ignorant, tendentious fashion merely to serve your cause.

You're a terrible advertisement for the kind of justice we would live under if you were in charge. Oops, we've already seen that with your outrageous anti-SOPA crusade that succeeded in overthrowing Congress so that legislation didn't even come to a vote. And BTW, precisely because there isn't a good law to establish the line of criminality you refuse to reckon with regarding piracy and copying that prosecutors are going to feel entitled to "make examples" -- even with six months -- of people like Swartz. So you are to blame as well.

Re: And this is why you fail.

No, this is why I tell the truth, because Swartz didn't stop SOPA, Mitch Kapor's funded groups, going back for 10 years working the usual stealth cadre networks, got it stopped. The rest is just window dressing.

@ silverscarcat

"If I said that I spent time in a mental psych ward, the first thing that would pop into your head was someone with a straight jacket on sitting in a completely padded room while doctors and nurses walked by."

You watch way too many B-Movies silvercat; or, are over age of 60?
My generation is far less ignorant and stupidly judgmental.

Re: @ silverscarcat

Couldn't tell it by reading you.

The issue is that mental "illness" and behaviors authorities do not like can be conflated. It's a pretty well documented mental health issue, including privacy concerns for the mentally ill vs. safety concerns for the general public.

It has nothing to do with some generational gap, or your generations innate superiority to any generation before. To hear anyone even suggesting that is somewhat spooky to me, as it suggests a certain lack of perspective.

Shane - what the hell are you on about?
"It has nothing to do with some generational gap, or your generations innate superiority to any generation before."
"generations innate superiority" Say what??
I think it's YOU that completely missed the point and LACK perspective.

For you to write that generations DON'T think differently is absurd and just stupid!!!

@ silverscarcat

My point was and is (I thought rather simple to understand?) is that generations have always seen things differently. (Excuse the generalization for sake of argument if possible?)

I'm not sure what people you're referring to that still maintain a very dated stereo-type regarding mental health issues, so much so that they instill a belief that people "either suffer in silence, or get help and be branded a loon by society", fortunately for myself I know none.

If my age comment offended you, it was not my intention, I do however think your comments are very 'dated'.

Re: @ silverscarcat

"“People don’t hesitate telling acquaintances about a trip to their dentist or physician, but most stay quiet about their therapy appointment,” said Ryan Howes, Ph.D, a clinical psychologist and professor in Pasadena, Calif. That’s because even though progress has been made, he said, there’s still stigma attached to seeking therapy.

Re: @ silverscarcat

"Like Styron, I was both enraged and saddened that friends and family were shocked to hear that two doctors sliced me open–before full anesthesia kicked in–to save little David’s life in an emergency C-section. Yet when I voiced the desperation of depression–which made the knife cut feel like a knee scratch–they often brushed it off, as if I were whining to win some undeserved sympathy votes."

Don't you get it yet?

People who deal with physical symptoms and suffer through it are macho and tough and can deal with anything.

Anyone who suffers through mental problems is a wuss and should be shunned.

An egregious abuse

It just boils my blood whenever I read that Ms.Ortiz has no blame to share for this tragic suicide. She had the discretion to not pursue the case. She had the discretion to recommend probation at the very outset. For God’s sake, she had the time to research into this young man’s transformational contributions to technology and an open internet – which would have perhaps led her to make a different decision if she had any compassion or intelligence even. Her office released a statement on Wednesday expressing her sympathy as a “parent” and “sister”. No Ms. Ortiz, you do not deserve either of those titles. You were Aaron Swartz’s executioner – and I hope that remains your crowning achievement for the rest of your pathetic career.

Aaron Swartz and the voice of truth

ortiz's statement

U.S. justice = extremism, chronic bullying, and maintenance of power...and surveillance.
No U.S. citizen is well served under such a system.
EVERYBODY is a potential target for repression of any action or idea.
Good luck with that 'freedom' thing, folks. You've got a steep climb to achieve it.

Scwartze

I cant comment about his guilt or innocence however the writer of this article is too emotionally envolved to see the way things are in the criminal justice system. Yes prosecutors can threaten people with harsh sentenses to make them plead guilty even if the case is weak. The system needs the plea system to speed up cases because American cops are better at nabing perps than most countries cops and even though they seem to arrest a lt of people, they only clear a few percent of crimes with arrests. The plea system keeps the system flowing. BTW Scwartzes lawyer could have asked for a trial by judge only. If the case was as weak as the writer says the judge would have dismissed it out of hand.

In general very very few innocent people charged with a crime actually make it to the court phase because of built in safeguards.

The article writer should have stayed away from this. Rw emotion clouds judgement. I will however read more on this.

Re: Scwartze

The system needs the plea system to speed up cases because American cops are better at nabing perps than most countries cops and even though they seem to arrest a lt of people, they only clear a few percent of crimes with arrests.

I disagree completely. We do not need the pleas bargaining system at all. In fact, it really needs to be specifically illegal to do.

We have so many court cases not because American cops are better at nabbing perps, but because the US criminalizes far too many things.

If our laws were rational and reasonable, the courts would not be so overloaded. That's the way to fix this problem -- not by making it easier for the law to continue to be abusive.

Plea Bargain BS

I call this "offer" the never ending 6 month offer, apparently in looking at posts on the web there is very little knowledge of what these so-called plea bargain entail. They are fraught with never ending restrictions and fine tuned to bring the recidivism rate up to maximum. Because every body incarcerated is worth $50,000.00 or more, depending on the place of imprisonment - it is big systemic money to the demise of the so-called offender. Or if they go in the private prison for money every pound of flesh imprisoned means a higher stock value on the market.

With this "bargain" there is definitely internet restriction or oversight which means there is no freedom at all, this is meant to effectively destroy any life built on the activism which Aaron lived and breathed. Along with this there is the never ending "reporting" to whatever authority, along with the intrusion - at any time, of the person in their home or work or wherever. Then there is whatever restitution or "service" demanded, ostensibly in this case telling "would-be" activists "never do what I did," etc.

This is why I call it the forever plea bargain, because you are hounded to the grave, and there is no such thing as having done your time - or for it to be over in any form. In the name of a "rehabilitation" there is a life destroyed. The judicial/prison system is abusive to the max degree, portends never ending persecution, and is meant to cripple or bury the so-called offender by any means necessary. Are you next, are you children next? The dragnet broadens exponentially.

Re: Plea Bargain BS

Well, no. You aren't "hounded to the grave" unless you are an emotionally fragile coddled child genius with bipolar or autism spectrum or both.

Again, if you don't want cases to be pressured to serve the task of deterrent of criminal hackers, you have to be for SOPA/PIPA which would define these cases more clearly and make it harder to overreach. Oh, but you didn't want the rule of law, you wanted code-as-law and you wanted "the Internet" to overthrow Congress and the courts. So, you get what you get.

Um, 6 Months is Not Very Much

It doesn't matter if plea-bargaining isn't used in every case; it was in this one and the high-priced lawyers didn't object! They didn't take the deal, but there's a far, far cry from the 35 or even 50 years you all were screaming about like bansheesh, and the...6 months offered for a legitimate and lawful guilty plea. Ortiz even noted that the lawyer was free to ask for probation given the prosecution's recognition that it wasn't a crime for personal gain.

Beautifully written article and so true. BTW, the same culture of extortion exists in civil law, as well, where a person acting in malice with an attack dog attorney can destroy you financially. However, criminal law is much worse, where they can virtually destroy your whole life if you want your right to trial. Prosecutors such as this should be removed. Forget about whether or not it is fair to blame them individually versus "the system." They never stop to question if their high stakes threats are fair, and so no one should be fair to them.